Thomas judge bars Fair Use defense, OKs MediaSentry evidence

Rejecting every argument made by Jammie Thomas-Rasset and her legal team, a …

Jammie Thomas-Rasset's attempt to bar all MediaSentry evidence from her copyright infringement retrial next week has failed, as has her attempt to assert a "fair use" defense.

Judge Michael Davis oversaw the first Jammie Thomas trial and was sympathetic to her plight. After a jury awarded the music labels $222,000 in damages for Thomas' file-sharing, the judge made clear that he disapproved of the penalty:

While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred [emphasis his] times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs...

But that dislike of the verdict doesn't mean that Davis is going to give Thomas-Rasset (who married in the time between the two trials) whatever she asks for. Case in point: today, Davis tossed out every argument against RIAA investigative firm MediaSentry, which collected the information that led to Thomas-Rasset's trial.

Thomas-Rasset's new lawyer, Kiwi Camara, had argued that the company violated the Minnesota Private Detectives Act (MPDA) because it had not taken out a private investigator's license in the state. But Davis concluded that "MediaSentry is not subject to the MPDA. Based on the language of the MPDA, the Act does not apply to persons or companies operating outside of the state of Minnesota... MediaSentry does not operate within Minnesota. It has no employees in Minnesota and does not conduct any activities in Minnesota."

Camara also claimed that MediaSentry was violating federal "pen register" laws and wiretapping statutes by recording the packets sent to it over the Internet. The Court didn't buy that one, either. "The Pen Register Act cannot be intended to prevent individuals who receive electronic communications from recording the IP information sent to them. If it did apply in those cases, then the Internet could not function because standard computer operations require recording IP addresses so parties can communicate with one another over the Internet," he wrote.

"Additionally, the Pen Register Act does not bar recordings of the contents of communications that are made with the consent of one of the parties to the communication."

As to the claim that Thomas-Rasset had an expectation of privacy around her communications, the judge completely disagreed. "There is no expectation of solitude or seclusion when a person activates a file sharing program and sends a file to the requesting computer," he wrote. "By participating in Kazaa, a user expects millions of other users to view and copy her files, each time receiving the very information that Thomas?Rasset sent to MediaSentry and MediaSentry recorded."

So much for that defense, which aimed to kneecap the recording industry lawsuit before the trial even began. (Camara does plan to contest the labels' copyright registrations, though, which would also cripple the case completely.)

If the case proceeded past those obstacles, Camara still had hope that he could claim (like his mentor, Harvard Law's Charles Nesson) "fair use" in this case. But fair use is an "affirmative defense," one that must be raised before trial so that witnesses can be questioned about it in deposition and discovery.

"Defendant failed to raise the fair use defense in her Answer, at any time before the First Trial, during the First Trial, or at any time leading up to this retrial until only two weeks before retrial," said the judge. "This litigation has gone on for years, yet Plaintiffs had no inkling of this defense until the eve of trial. Because Plaintiffs had no notice of this defense, they have taken no discovery regarding Defendant’s alleged fair use defense. The record in this case, with which this Court is intimately familiar, gave no hint that a fair use defense would be forthcoming. It would be highly prejudicial to Plaintiffs to allow Defendant to assert this new affirmative defense on the eve of retrial, when they have no opportunity to conduct discovery on this issue..."

So, MediaSentry is in, fair use is out, and Jammie Thomas-Rasset's expert witness has had his testimony pared back. (He won't be able to invoke the specter of someone using Thomas-Rasset's wireless router to share files, for instance, since it emerged form the first trial that she didn't own one.)

Oh, and as for that first trial? It will only be referred to in court as "a prior proceeding," the results of which won't be revealed to the jury.

We'll have daily coverage of the case live from the courthouse starting next Monday.

82 Reader Comments

I find the whole Media Sentry thing odd. If they can testify in Minnesota, doesn't that mean that they operate in Minnesota. Isn't the law really to regulate the accuracy of evidence used in the state, regardless of where it comes from. If they dont have a license in that state, their evidence should not be admissible in that state no matter where they operate.

Originally posted by TechGeek:I find the whole Media Sentry thing odd. If they can testify in Minnesota, doesn't that mean that they operate in Minnesota. Isn't the law really to regulate the accuracy of evidence used in the state, regardless of where it comes from. If they dont have a license in that state, their evidence should not be admissible in that state no matter where they operate.

I too find that deeply troubling, and I would hope that this point somehow gets appealed. Especially considering that MediaSentry's "evidence" consists of printed screen shots. I wonder if anyone there has ever heard of a chain of custody?

Not to be a troll, but it sounds like the judge made defensible, dare I say correct, decisions thus far.

I may be an extreme minority here, but I have no problem with file sharing of copywritten works being punishable by law. What I have a problem with is the exhorbinant fee's that are so completely disconnected from the actual market value of the copywritten work. I say, let the RIAA sue everyone they catch filesharing, but only let the maximum damages be equal to 10x the market value of the copywritten work. Since almost all songs are available from iTunes or Amazon for ~99cents, this would have cost this woman $240 at most.

That would probably be enough to deter her from filesharing, and get her paying for the music she wants, without making her a martyre. After the RIAA made a few examples of people, they should see that the returns <<< the costs and give up chasing down any but the most prolific file sharers (Pirate bay, etc.)

The Pen Register Act cannot be intended to prevent individuals who receive electronic communications from recording the IP information sent to them. If it did apply in those cases, then the Internet could not function because standard computer operations require recording IP addresses so parties can communicate with one another over the Internet.

That's the most sensible explanation of how (one aspect of) the internet works that I've ever heard from any judge or politician. Seems like a good adaptation of an existing law to modern technology as well.

I would argue that the judge appears too sympathetic to the defendent. I disagree with the judge's assessment of the damages in light of the fact that Thomas was actually sharing hundreds of songs, but the RIAA only charged her with 24 counts. And I didn't know that the WiFi defense had already been discredited, someone put that up in a discussion thread here against me, but it turns out that she didn't even own one. Wow, very disingenuous.

Can't wait till this is all over with. She needs to do her time and pay her fine.

Originally posted by crmarvin42:Not to be a troll, but it sounds like the judge made defensible, dare I say correct, decisions thus far.

I may be an extreme minority here, but I have no problem with file sharing of copywritten works being punishable by law. What I have a problem with is the exhorbinant fee's that are so completely disconnected from the actual market value of the copywritten work. I say, let the RIAA sue everyone they catch filesharing, but only let the maximum damages be equal to 10x the market value of the copywritten work. Since almost all songs are available from iTunes or Amazon for ~99cents, this would have cost this woman $240 at most.

That would probably be enough to deter her from filesharing, and get her paying for the music she wants, without making her a martyre. After the RIAA made a few examples of people, they should see that the returns <<< the costs and give up chasing down any but the most prolific file sharers (Pirate bay, etc.)

I agree with you for the most part, although in the Thomas case she was sharing 1,702 songs, which would give a penalty of $17,020 as they likely would have simply charged her with more counts to up the damages.

Also, the real issue here is whether or not you would have a method to seperate commercial vs. consumer activity, what if someone did this via an advertising supported client that made them far more money than the theoretical maximum damages? How would that be right or fair?

Originally posted by crmarvin42:I may be an extreme minority here, but I have no problem with file sharing of copywritten works being punishable by law. What I have a problem with is the exhorbinant fee's that are so completely disconnected from the actual market value of the copywritten work.

I guess we're a minority of two, at least. The problem is with figuring out how much the damages should be. If someone has a 256kbps upstream connection, they can share a song in under 3 minutes, or about 25 songs per hour. If the PC is on 6 hours per day, that's about 4000 songs per month, let's say damages are $5 per track (5x the itunes price, as I believe that these damages are designed as much to be a punishment/deterrent and not to just make somebody whole) that could be $20,000 for just a month of Kazaa use, but we don't know how long Jammie's been using Kazaa.

The law was written to severly punish commercial infringers (and I think is probably fair in that regard) but I think needs to be changed for the digital age. That's unliekly to happen given how big content has politicians in their pockets, and so some people think that the only way to get them changed is to find p2p users not guilty in trials like this, sort of like a form of civil disobedience.

I think of the people who complain about the riaa lawsuits like the people who complain when they get a traffic ticket even though it "wasn't their fault". If you don't want to get pulled over, don't speed. If you don't want to be sued by the riaa, learn to use newsgroups.

Originally posted by crmarvin42:I may be an extreme minority here, but I have no problem with file sharing of copywritten works being punishable by law. What I have a problem with is the exhorbinant fee's that are so completely disconnected from the actual market value of the copywritten work.

I guess we're a minority of two, at least. The problem is with figuring out how much the damages should be. If someone has a 256kbps upstream connection, they can share a song in under 3 minutes, or about 25 songs per hour. If the PC is on 6 hours per day, that's about 4000 songs per month, let's say damages are $5 per track (5x the itunes price, as I believe that these damages are designed as much to be a punishment/deterrent and not to just make somebody whole) that could be $20,000 for just a month of Kazaa use, but we don't know how long Jammie's been using Kazaa.

The law was written to severly punish commercial infringers (and I think is probably fair in that regard) but I think needs to be changed for the digital age. That's unliekly to happen given how big content has politicians in their pockets, and so some people think that the only way to get them changed is to find p2p users not guilty in trials like this, sort of like a form of civil disobedience.

I think of the people who complain about the riaa lawsuits like the people who complain when they get a traffic ticket even though it "wasn't their fault". If you don't want to get pulled over, don't speed. If you don't want to be sued by the riaa, learn to use newsgroups.

When using a filesharing program, you arent sharing unless it is ON, amirite?

Anyways, you should only be fined for each KNOWN case of infringement, so they would have to prove and count each song shared.

Aww, doesn't that sound hard? Well maybe they better get new business models.

Originally posted by BigLan:I guess we're a minority of two, at least. The problem is with figuring out how much the damages should be. If someone has a 256kbps upstream connection, they can share a song in under 3 minutes, or about 25 songs per hour. If the PC is on 6 hours per day, that's about 4000 songs per month, let's say damages are $5 per track (5x the itunes price, as I believe that these damages are designed as much to be a punishment/deterrent and not to just make somebody whole) that could be $20,000 for just a month of Kazaa use, but we don't know how long Jammie's been using Kazaa.

You also don't know how many times each song was downloaded. Not to mention that since P2P programs rarely share entire files with a single person, it's entirely possible that she never uploaded a single complete file to anyone.

The public performance right allows the copyright holder to control the public performance of certain copyrighted works. The scope of the performance right is limited to the following types of works:

* literary works, * musical works,...

Under the public performance right, a copyright holder is allowed to control when the work is performed "publicly." A performance is considered "public" when the work is performed in a "place open to the public or at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered."

quote:

if i burn a copy of that cd for each of those million friends... i've broken no laws.

Ditto. Same page:

quote:

The reproduction right is perhaps the most important right granted by the Copyright Act. Under this right, no one other than the copyright owner may make any reproductions or copies of the work. Examples of unauthorized acts which are prohibited under this right include photocopying a book, copying a computer software program, using a cartoon character on a t-shirt, and incorporating a portion of another's song into a new song.

It is not necessary that the entire original work be copied for an infringement of the reproduction right to occur. All that is necessary is that the copying be "substantial and material."

I object to the exorbitant fines as much as anyone...But that doesn't mean it's OK to willy-nilly share what someone did put effort into making (whether or not you think the effort was worth it or should be considered effort notwithstanding).

The RIAA is the only thing standing between the defense of capitalism and communism taking over. Too many people don't seem to understand that they are stealing when they take pirated works. They seem to think it ought to be free and that the people they steal from should be happy that they're stealing it. They are defending not just themselves and their clients, but ultimately all artists all over the world. I'm surprised that other companies aren't stepping in to make sure that RIAA doesn't screw up. For example, a company like Microsoft which sells its software, would surely be affected by precedents set in an RIAA case.

I was worried about this judge, but clearly he's on the right side of the law. However, the amount should awarded should stand. The RIAA can't fund its legal team on a few dollars. They need to recycle the money that they get from the settlements so that they can continue their crusade against pirates and thieves. And a few dollars isn't going to deter future criminal sharing.

If a drug dealer is caught selling drugs, no one in the court room really cares if they've been selling it for a day or ten years. They're still going to jail for it. Should be the same for sharing a song illegally. Shouldn't matter if it got sent to one person or a thousand. They really should throw a criminal record at these pirates as well. Maybe that would be the trick to making people respect the property of others.

^^Holy fucking shit, someone took their fascist pills today: while they are at it, why not just skip the middleman, take her out back and shoot her in the fucking head, North Korea style. Clearly the ideas of fairness, justice and basic civil rights are lost on you, Mr. Jong-Il. So I suppose that you feel if someone were to accidentally place a few centimeters of their foot on your lawn, the appropriate and justified response is for you to run out with a shotgun and blow their brains all over the sidewalk. It is your property, after all.

Well, unfortunately, it looks like she is fucked. The RIAA gets to claim that she caused them $11 million in damages, or whatever crazy, meaningless number they can extract from their all-too-flexible anal cavity. While I think the judge was correct in throwing out the sudden "fair use defense" (did anyone think that would work?), allowing all of the MediaSentry evidence sets a very dangerous precedent.

Originally posted by TechGeek:I find the whole Media Sentry thing odd. If they can testify in Minnesota, doesn't that mean that they operate in Minnesota. Isn't the law really to regulate the accuracy of evidence used in the state, regardless of where it comes from. If they dont have a license in that state, their evidence should not be admissible in that state no matter where they operate.

They aren't testifying in Minnesota, they are testifying in Federal Court, for which the court room just happens to be located in Minnestota. So yes physically they are testifying in Minnesota, but the jurisdiction of the court is federal not state so a state boundry doesn't apply.

I can understand the judges logic here, so far it sounds fair and reasonable. Except the one part:

"Defendant failed to raise the fair use defense in her Answer, at any time before the First Trial, during the First Trial, or at any time leading up to this retrial until only two weeks before retrial," said the judge. "This litigation has gone on for years, yet Plaintiffs had no inkling of this defense until the eve of trial. Because Plaintiffs had no notice of this defense, they have taken no discovery regarding Defendant’s alleged fair use defense. The record in this case, with which this Court is intimately familiar, gave no hint that a fair use defense would be forthcoming. It would be highly prejudicial to Plaintiffs to allow Defendant to assert this new affirmative defense on the eve of retrial, when they have no opportunity to conduct discovery on this issue..."

I think they did have time to do discovery on that issue. The RIAA raised a hint of fair use their self during the first trial. They did have notice, the motion was filed and the RIAA now needs time for discovery, its as simple as that. Simply asserting that they did not have time because the motion was just presented doesn't mean they can't have time for discovery. So, give them discovery time now that they found out about the motion, its simple. I think the judge should have looked at this one a little closer before ruling.

Another thing about the MediaSentry evidence, even though it wasn't thrown out, it is still subject to examination so they will need to prove it valid and factual in this case which gives the defense time to pick it apart and create doubt.

Honestly, I'm pretty well pleased with this judge. While I think, personally, that the RIAA is full of greedy self-righteous bastards, it's at least their right to be greedy self-righteous bastards. It's not their right to extort money from people. And simply because Jammie shared some songs online (admittedly, a crime), does not make her liable for any arbitrary amount of money the jury wants to come up with.

I'd argue the numbers, but it's pointless. It's absolutely impossible to tell the effect. I could make 10,000 songs "available" online, but if no one downloads them, there's no damage. Meanwhile, I could make 10 songs available, and they get passed on made available by someone else, and then they get passed on and soon I'm responsible for 10,000 "lost sales", all on my own. The way things move around on the internet is way too chaotic to predict, much less count up damages for. So either pick something that's fair (to BOTH parties), or quit whining.

This judge has kept a cool head in his rulings of what must certainly be a frustrating case, so I have to applaud him for that. And hope for the best for Jammie and all the others.

Originally posted by atergo:Sounds to me like maybe the judge is in someone's pocket....

Yes, he's sworn an oath to them. They are We The People visa vi the US Constitution.

Anyway, it sure looks like Jammie is still going to be coughing up cash. The good news is that it is very unlikely that she'll be handed a $200K bill this time. I'm trying to recall, she wasn't assessed any of the RIAA's legal fees last time, right?

Originally posted by Jack_o:Another thing about the MediaSentry evidence, even though it wasn't thrown out, it is still subject to examination so they will need to prove it valid and factual in this case which gives the defense time to pick it apart and create doubt.

I really don't think this is over by a long shot, but it's now time to wait and see what happens next.

The Pen Register Act cannot be intended to prevent individuals who receive electronic communications from recording the IP information sent to them. If it did apply in those cases, then the Internet could not function because standard computer operations require recording IP addresses so parties can communicate with one another over the Internet.

That's the most sensible explanation of how (one aspect of) the internet works that I've ever heard from any judge or politician. Seems like a good adaptation of an existing law to modern technology as well.

That struck me the same way. It's good to see a judge demonstrate an appreciation of the technical implications of a ruling.

Even the part about where MediaSentry operates, while at first glance doesn't strike me as correct, does make sense when you consider the implications. By posting to this board do I operate in whatever city/state that the Ars servers are residing in? What about where you live, does my post here lead to me operating where you are? It isn't as straight forward as that but I suspect, and this is just a layman's hunch, that if MPDA tried to reach outside the state like that there might be some trouble with treading outside the state Constitutional jurisdiction and into the federal powers section (I'm thinking Interstate Commerce Clause here).

I say they still need to prove that she actually distributed this material to anyone other than MediaSentry.

Any other case where the evidence was presented as "we think the defendant might have done it" would be laughed out of court. Unfortunately, the situation is so woefully beyond the technical understanding of any person with legal authority that this laughably pathetic "evidence" is accepted without question.

I wish there was an IT guy on the jury who could explain the situation to the 11 other technological simians and help them to understand why the evidence is flimsier than tracing paper.

"if i purchase a cd... invite a million of my friends over to listen to it, i've broken no laws".

"if i burn a copy of that cd for each of those million friends... i've broken no laws".

These statements can BOTH be wrong, depending on what country you live in. In GB it is against the law to play music loud enough for the public to hear.

In the USA at least it is legal to make one copy of a CD or DVD as an archive copy for your self. It is not legal to give them to others.

That said, my spin on the case in question is that from the language that constitutes operating as a private investigator in the state of Minnesota I believe the judge error ed. It is clear in my view that media sentry is acting as a private investigator. The key issue is payment for their services. If that were established then all the evidence would be tossed.

Originally posted by epp_b:I say they still need to prove that she actually distributed this material to anyone other than MediaSentry.

...This comment was edited by epp_b on June 12, 2009 00:44

Yeah, that's the point of this new trial and the whole "making available" issue. Before the jury was under the impression (due to directions from the judge) that simply making the song available for download means she had infringed and no further evidence was needed. Now, even if the songs were available the RIAA apparently needs to show some evidence (or convince the jury) that it's plausible that X amount of people downloaded the songs, therefor infringing on their copyright.

Originally posted by OtheHill:That said, my spin on the case in question is that from the language that constitutes operating as a private investigator in the state of Minnesota I believe the judge error ed. It is clear in my view that media sentry is acting as a private investigator. The key issue is payment for their services.

Were they paid in MN by a MN based party? Where is the RIAA based out of?

I would disagree with the judge's decisions, mostly because the reasons for not allowing the 'fair use' defence are rooted in promoting efficacy and not promoting justice, and because the MediaSentry decisions don't take into account the very nature of the Internet that physical location and boundaries don't really apply anymore.

Having said that, I can also see why the judge ruled as he did, and I don't presume to know the law better than he does so I do accept that he ruled as he did fairly and according to good legal authority.

Let's just see how the rest of the trial turns out.

Oh and:

quote:

Originally posted by jwildstr:

quote:

Originally posted by MrYoung:if i purchase a cd... invite a million of my friends over to listen to it, i've broken no laws.

A performance is considered "public" when the work is performed in a "place open to the public or at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered."

Not my fault if I have a lot of "social acquaintances"? Though a million would be pushing it. And burning the CDs would still be infringement; realistically, however noone is going to sue you unless you get into the 000's of copies.

Originally posted by epp_b:I say they still need to prove that she actually distributed this material to anyone other than MediaSentry.

Any other case where the evidence was presented as "we think the defendant might have done it" would be laughed out of court. Unfortunately, the situation is so woefully beyond the technical understanding of any person with legal authority that this laughably pathetic "evidence" is accepted without question.

I wish there was an IT guy on the jury who could explain the situation to the 11 other technological simians and help them to understand why the evidence is flimsier than tracing paper.

This comment was edited by epp_b on June 12, 2009 00:44

1) By this standard most sting operations would be inadmissable, after all you'd have to 'prove' that the defendent sold drugs to more than undercover cops, or the prostitute offered services to anyone other than the undercover.

2) Beyond that, this is a civil, rather than a criminal case, which means the standard of evidence is considerably lower to obtain convictions. Being able to simply invent a possible scenario whereby you concievably could have been innocent is not a valid defense in a civil trial.

Originally posted by TechGeek:I find the whole Media Sentry thing odd. If they can testify in Minnesota, doesn't that mean that they operate in Minnesota. Isn't the law really to regulate the accuracy of evidence used in the state, regardless of where it comes from. If they dont have a license in that state, their evidence should not be admissible in that state no matter where they operate.

I too find that deeply troubling, and I would hope that this point somehow gets appealed. Especially considering that MediaSentry's "evidence" consists of printed screen shots. I wonder if anyone there has ever heard of a chain of custody?

I also feel the same here .

quote:

MediaSentry's data-gathering on P2P users violated no laws,

the mediasentry never open source of the program and method that they use to gathering data . how do the federal judge decide that whether the method is violeted no laws?

so something happen to Swedish is also happen here . I couldn't believe that the federal judge could come out such nonsense excuse .

I just come out a good idea how we can use this "fair use" to cheat insurance .

I think some people are missing something. If she had passed on 24 music tapes to her friends. Is she then responsible for everytime those tapes get copied again and passed on? Or could her friends obtain copies from somewhere else? There may or may not be a domino effect from her sharing how would you prove it? More importantly why should she be held responsible once the copying is out of her hands?I think 10x is fair damages, it was a property crime. Can I get $220,000 if a burglar takes 24 of my CD's, I don't think so.

So then if that is the case, why aren't they trying these as criminal cases? We can rule out "kindness" or any other such response as pure bull. My guess, the standards of proof, and possibly the MediaSentry evidence.

Originally posted by maxairmike:So then if that is the case, why aren't they trying these as criminal cases? We can rule out "kindness" or any other such response as pure bull. My guess, the standards of proof, and possibly the MediaSentry evidence.

Is there a Judge or Law Professor on the forum, we have a legal emergency. &=) (A man with a wig emoticon)

Originally posted by maxairmike:So then if that is the case, why aren't they trying these as criminal cases? We can rule out "kindness" or any other such response as pure bull. My guess, the standards of proof, and possibly the MediaSentry evidence.

Standards of proof, and they don't get the fat stacks of the defendant's money in a criminal trial.

Originally posted by TechGeek:I find the whole Media Sentry thing odd. If they can testify in Minnesota, doesn't that mean that they operate in Minnesota....

I too find that deeply troubling, and I would hope that this point somehow gets appealed. Especially considering that MediaSentry's "evidence" consists of printed screen shots. I wonder if anyone there has ever heard of a chain of custody?

What about chain of custody? If Thomas wants to challenge the authenticity of the evidence, she should have investigated the authenticity of the evidence during discovery, and she could still do so when MediaSentry's representative takes the stand.

quote:

Originally posted by 0bliv!on:I would disagree with the judge's decisions, mostly because the reasons for not allowing the 'fair use' defence are rooted in promoting efficacy and not promoting justice

It has everything to do with justice. The American legal system does a lot to try to ensure due process of law, but one's right to due process doesn't mean you're entitled to sit on your rights and prejudice your opponent. Thomas and her lawyers had every opportunity over the past several years to plead the Fair Use defense. Countless amounts of time and money have been spent by both sides to prepare their cases for trial. Part of that preparation is disclosing to the other side your arguments, and permitting your opponent to conduct discovery - to investigate - the evidence for and against those arguments. By waiting until the eleventh hour to plead the fair use defense, Thomas deprived her opponent of fair opportunity to prepare any rebuttal to that argument and the evidence she would present. Our system operates on the belief that such "trial by surprise" tactics are unjust.

quote:

Originally posted by Jack_o:I think they did have time to do discovery on that issue. The RIAA raised a hint of fair use their self during the first trial. They did have notice, the motion was filed and the RIAA now needs time for discovery, its as simple as that. Simply asserting that they did not have time because the motion was just presented doesn't mean they can't have time for discovery. So, give them discovery time now that they found out about the motion, its simple.

So you think the judge should have just said, "okay RIAA, now you take some discovery on Thomas's fair use defense and then we'll get right back to this trial we have scheduled." I don't think you appreciate the gravity of what you're proposing. Courts are very busy, with hundreds of cases pending, and litigants patiently awaiting their day in court. Lawyers are expensive, and so are court reporters and videographers who record depositions. In recognition of these realities, courts issue scheduling orders, which dictate the time allotted for discovery in a given lawsuit, and when motions are to be briefed and argued, and when trial is to occur. The scheduling order is one of the first orders issued in any civil case, soon after the parties file their complaint and answer, and they need to stick to the schedule ordered by the court. If the judge were to do as you propose, and reopen discovery, that would (1) unduly prejudice the plaintiffs because they are forced to spend additional money on investigating a defense they would have investigated during the scheduled discovery period had Thomas timely pled the defense, and (2) they may, during this discovery, find new facts that warrant new motions, such as new motions for summary judgment, which would need to be briefed and heard before trial. This all means that the trial must be delayed, which means that other trials on the judge's calendar need to be delayed, which wrecks havoc on the entire system -- all of which could have been prevented had Thomas and her lawyer timely informed the plaintiffs that they intended to bring a fair use defense, as was her obligation under the Federal Rules of Civil Procedure. I have to side with the judge on this one.

quote:

, and because the MediaSentry decisions don't take into account the very nature of the Internet that physical location and boundaries don't really apply anymore.

So every court in the world should have jurisdiction over you? If you conduct activity - illegal news reporting or protesting - that violates Iranian law, while visiting an Iranian website, you believe you should be hauled into an Iranian court? Really? I think you want to reconsider the fact that, even in the age of the Internet, geographical location has meaningful consequences and should be a factor in the role of legal systems in society.

quote:

Originally posted by Jack_o:They aren't testifying in Minnesota, they are testifying in Federal Court, for which the court room just happens to be located in Minnestota. So yes physically they are testifying in Minnesota, but the jurisdiction of the court is federal not state so a state boundry doesn't apply.

No, federal district court jurisdiction is, generally, limited to the state in which that district court sits. Jurisdiction isn't the issue, the issue is application of Minnesota's law governing private investigators. The judge interpreted the law as not applying to out-of-state entities like MediaSentry. Now, Thomas can appeal that issue if she likes, but if the court of appeal agrees with the district court, then it's up to the Minnesota legislature to revise the law if they disagree.

Originally posted by crmarvin42:I may be an extreme minority here, but I have no problem with file sharing of copywritten works being punishable by law. What I have a problem with is the exhorbinant fee's that are so completely disconnected from the actual market value of the copywritten work.

Thank you! I was beginning to think I was the only one trying to think rationally about these issues.

It really, really bothers me that so few people try to understand both point of view in a rational way: the media industry wants copyright violation to be treated as mass murder and the "pirates" want to make it believe that it's perfectly all right to "consume" music, video and software without paying the authors and distributors for their effort. And as each side goes more extreme, I see the debate going further and further away from the main point (arguing that "his IP was spoofed" might be a fair argument in trial but it doesn't stand a snowflake chances in hell to convinced anyone with any bit of technical background that this is what really happened).